United States District Court, D. Colorado
OPINION AND ORDER ADOPTING RECOMMENDATION AND GRANTING MOTION TO DISMISS
MARCIA S. KRIEGER, Chief District Judge.
THIS MATTER comes before the Court on the Recommendation (#35) of the Magistrate Judge that Defendant Physicians Healthcare Partners' Motion to Dismiss, With Prejudice, (#15) be granted. The Plaintiff Darrell Havens filed Objections (#38) to the Recommendation, and Physicians Healthcare Partners filed a Response (#40).
The following facts relevant to the motion to dismiss are derived from the allegations in the Amended Complaint (#9).
Mr. Havens, proceeding pro se, is currently in the custody of the Colorado Department of Corrections and is incarcerated at the Denver Reception and Diagnostic Center in Denver, Colorado. He is an "incomplete quadriplegic" and is "totally dependent on nurses and Offender Care Aides." The Defendant Physicians Healthcare Partners (PHP) is an insurer, and "is acting as a paid Agent or Employee of DRDC and Colorado Department of Corrections."
In or about November 2011, PHP "stopped" a procedure described as a "fusion with bars and screws, permanent fixtures" to correct a "70 degree scoliosis curvature." The procedure required a CT scan first, which was performed, but PHP declined to approve the remainder of the procedure because the "paperwork seemed like cosmetic.'"
Further, in 2012, Mr. Havens was ordered to see an ortho spine specialist after suffering severe bladder infections. A spine team doctor at Denver Health, Dr. Vanderveen, wanted to schedule a CT scan because he believed Mr. Havens had "4 fractured vertebra[e]/1 broken." Apparently, the recommendation for the scan was approved, but the next week PHP stopped the procedure because they did not "feel it is a progressive surgery."
Mr. Havens alleges that the procedures would allow him to use the restroom on his own, to walk, and would relieve pain.
Based on these allegations, Mr. Havens asserts one claim under 42 U.S.C § 1983 against PHP. He alleges that due to PHP's deliberate indifference to his serious medical needs, it has deprived him of his Eighth Amendment right to be free from cruel and unusual punishment. He seeks an order requiring the surgery and requiring training on "decision making" for each named Defendant, compensatory damages, and costs.
PHP moves to dismiss the claim against it pursuant to Fed.R.Civ.P. 12(b)(6). It contends that (1) Mr. Havens fails to allege facts sufficient to demonstrate municipal liability, and (2) Mr. Havens fails to allege facts sufficient to state a constitutional claim under the Eighth Amendment because he simply alleges a disagreement with PHP over the need for surgery.
The matter was referred to the Magistrate Judge, who recommends that PHP's motion to dismiss be granted. The Recommendation found that the Amended Complaint failed to state a claim under § 1983 against PHP, concluding that the allegations did not establish municipal liability by PHP. The Recommendation also notes that to the extent Mr. Havens' allegations amount to a disagreement over the need for corrective surgery, such allegations are insufficient to state a claim under the Eighth Amendment.
Mr. Havens objects to the Recommendation's conclusion regarding municipal liability.
II. Standard of Review
When a magistrate judge issues a recommendation on a dispositive motion, the parties may file specific, written objections within fourteen days after being served with a copy of the recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The district court shall make a de novo determination of those portions of the recommendation to which timely and specific objection is made. U.S. v. One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). Here, Mr. Havens ...